# C_2019399EN.01007101.xml

| 25.11.2019 | EN | Official Journal of the European Union | C 399/71 |
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25.11.2019

EN

Official Journal of the European Union

C 399/71

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Action brought on 9 September 2019 – Canon v Commission

(Case T-609/19)

(2019/C 399/89)

Language of the case: English

Parties

Applicant: Canon Inc. (Tokyo, Japan) (represented by: U. Soltész, W. Bosch, C. von Köckritz, K. Winkelmann, J. Schindler, D. Arts, W. Devroe, lawyers and M. Reynolds, Solicitor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul European Commission decision C(2019) 4559 final of 27 June 2019 imposing fines for failing to notify a concentration in breach of Article 4(1) of Council Regulation (EC) No 139/2004 (1) and for implementing a concentration in breach of Article 7(1) Council Regulation (EC) No 139/2004 (Case M.8179 - Canon/Toshiba Medical Systems Corporation, Article 14(2) procedure), as notified to the applicant on 1 July 2019; |
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annul European Commission decision C(2019) 4559 final of 27 June 2019 imposing fines for failing to notify a concentration in breach of Article 4(1) of Council Regulation (EC) No 139/2004 (1) and for implementing a concentration in breach of Article 7(1) Council Regulation (EC) No 139/2004 (Case M.8179 - Canon/Toshiba Medical Systems Corporation, Article 14(2) procedure), as notified to the applicant on 1 July 2019;

| — | in the alternative, annul or substantially reduce the fines imposed on it; |
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in the alternative, annul or substantially reduce the fines imposed on it;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

| 1. | First plea in law, alleging that the Commission committed a manifest error of law by misapplying the legal test for the assessment of Article 4(1) and Article 7(1) of Council Regulation (EC) No 139/2004.






  — | It is argued that the Commission ignores the existing case-law by relying on an unprecedented and unsupported concept of ‘partial implementation of a single concentration’. In particular, the Commission’s assessment does not establish that the interim transaction in question contributed to a lasting change of control over the target in the way required by the case-law. |
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1.

First plea in law, alleging that the Commission committed a manifest error of law by misapplying the legal test for the assessment of Article 4(1) and Article 7(1) of Council Regulation (EC) No 139/2004.

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It is argued that the Commission ignores the existing case-law by relying on an unprecedented and unsupported concept of ‘partial implementation of a single concentration’. In particular, the Commission’s assessment does not establish that the interim transaction in question contributed to a lasting change of control over the target in the way required by the case-law.

| 2. | Second plea in law, alleging that, although no intent or negligence on the part of the applicant was demonstrated, the Commission imposed a fine on the applicant in violation of Article 14 of Council Regulation (EC) No 139/2004, the principle of nulla poena sine lege and legitimate expectations, the principle of proportionality and the principle of concurrent offences. The applicant therefore requests the Court to exercise its unlimited jurisdiction under Article 16 of Council Regulation (EC) No 139/2004 and Article 261 TFEU to annul the decision regarding the fines entirely or reduce them significantly. |
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2.

Second plea in law, alleging that, although no intent or negligence on the part of the applicant was demonstrated, the Commission imposed a fine on the applicant in violation of Article 14 of Council Regulation (EC) No 139/2004, the principle of nulla poena sine lege and legitimate expectations, the principle of proportionality and the principle of concurrent offences. The applicant therefore requests the Court to exercise its unlimited jurisdiction under Article 16 of Council Regulation (EC) No 139/2004 and Article 261 TFEU to annul the decision regarding the fines entirely or reduce them significantly.

| 3. | Third plea in law, alleging that the Commission has violated essential procedural requirements. By denying the applicant the opportunity to comment on new arguments and facts/evidence in a formal reply to an additional supplementary statement of objections or letter of facts and during another oral hearing, it is argued that the Commission violated Article 18 of Council Regulation (EC) No 139/2004 and the applicant’s right of defence. |
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3.

Third plea in law, alleging that the Commission has violated essential procedural requirements. By denying the applicant the opportunity to comment on new arguments and facts/evidence in a formal reply to an additional supplementary statement of objections or letter of facts and during another oral hearing, it is argued that the Commission violated Article 18 of Council Regulation (EC) No 139/2004 and the applicant’s right of defence.

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(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

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